The Real Reason Eric Holder Should Resign as Attorney General

The Justice Department knows scores of men are locked up for acts that weren't criminal -- it's yet another injustice Holder has been unable or unwilling to remedy.

Reuters

What if the Department of Justice knew that scores of Americans were in jail for committing acts that were not in fact illegal, but made no effort to identify the wrongfully imprisoned and refused to release prisoners known to be innocent? You'd think it would be a scandal. Perhaps the biggest yet under Attorney General Eric Holder, presently under fire in the Fast and Furious investigation.

As it turns out, the news would go mostly ignored. That's now known because last week, reporter Brad Heath broke the story described above in a national publication:

A USA TODAY investigation, based on court records
and interviews with government officials and attorneys, found more than
60 men who went to prison for violating federal gun possession laws,
even though courts have since determined that it was not a federal crime
for them to have a gun.

Many of them don't even know they're innocent.

Still, the Justice Department has not attempted
to identify the men, has made no effort to notify them, and, in a few
cases in which the men have come forward on their own, has argued in
court that they should not be released. Justice
Department officials said it is not their job to notify prisoners that
they might be incarcerated for something that they now concede is not a
crime. And although they have agreed in court filings that the men are
innocent, they said they must still comply with federal laws that put
strict limits on when and how people can challenge their convictions in
court.

Two quotations in the story make for a striking juxtaposition.

Here's U.S. Attorney Anne Tompkins: "We can't be outcome driven. We've got to make sure we follow the law, and people should want us to do that."

And here's assistant federal public defender Debra Graves: "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't. I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."

Perhaps the story is getting so little attention because it affects people with criminal records, some quite reprehensible.

Or maybe it's that the details get complicated quickly:

Decades ago, Congress made it a federal crime for convicted felons to have a gun .... To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison. Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun. Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong.

The bottom line is nevertheless quite simple. As Radley Balko puts it, "There are innocent people in prison, everyone knows it, yet the government won't work to get them out, due to 'procedure.'"

Attorney General Holder didn't create this mess. But it sure looks like it's another injustice that he's failing to clean up. After President Obama and Harold Koh, perhaps no one in the Obama Administration has been a bigger disappointment to civil libertarians than Holder, so much so that Wil S. Hylton mused in a 2010 profile about whether there was any reason for him to keep his job. "He has promised to end the
policy of indefinite detention at Guantánamo by prosecuting some of its
most notorious detainees; to investigate torture by the CIA; and to
revitalize the department's most neglected offices, like the
long-suffering Civil Rights Division," Hylton wrote -- and he got a bigger budget and improved staffing for the Civil Rights Division. As for the rest:

In case after case, he seems to have reconciled himself to policies that he would have once condemned .... All of which raises the fundamental question that surrounds Holder's
legacy at Justice: Given his failure to provide a "reckoning" for
torture, given his refusal to extend the rule of law to enemy
combatants, given his inability to defend citizens against assassination
by their own government, and given that he has already accomplished the
thing that initially brought him to the DOJ, what, precisely, keeps him
in the job now?

In the time since that profile was written, the parties responsible for the Fast and Furious gun-walking case haven't been held accountable, the War on Drugs continues apace, and now we find out that department is knowingly keeping scores of men behind bars despite the fact that they're innocent. If this is what happens when a Democratic president appoints someone progressives regard as a dream attorney general, what exactly is the point of a progressive attorney general?

Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.